Citation Nr: 21016182 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 19-25 592 DATE: March 22, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s low back disability did not have its onset in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1952 to August 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in August 2020, at which time it was remanded for a VA examination. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A Veteran may be competent in certain situations to provide a diagnosis of a simple condition; however, a Veteran generally is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for a low back disability The Veteran contends his current back disability began in service from lifting patients. The Veteran has a current diagnosis of a mild chronic compression fracture, degenerative disc disease of the lumbar spine with retrolisthesis, herniation, and stenosis, along with bilateral lower extremity radiculopathy, as evidenced by the November 2020 VA examination. Initially, the evidence shows that back complaints were not documented during active duty. This is consistent with what the Veteran has reported. He testified that his back disability resulted from lifting patients onto gurneys in service and loading helicopters. He stated he went to the doctor on duty for pain and was told to go to the pharmacy, but there was no written documentation made. See July 2020 Hearing Transcript p. 3. Of note, a medical examination conducted in August 1954, revealed that the spine was normal on clinical evaluation. Post service, the Veteran contends he went to chiropractors for 30 years, then to neurologist and pain specialists. The Veteran attempted to retrieve records from his chiropractors but was told they are no longer available. The earliest post-service documentation of a back disability is dated in 2004, approximately 50 years after service separation. The Veteran testified he attempted to obtain a nexus opinion from his private provider, however, the private medical provider informed him he was unable to provide a nexus statement going back 70 years because it was something he could not “back up.” A statement from a chiropractor dated in September 2020, was to the effect that the Veteran’s disability could be due to his military service. Such a speculative statement, however, is afforded little probative weight. The Veteran was afforded a VA examination in November 2020. The examiner noted degenerative disc disease of the lumbar spine, which she opined was caused by the normal aging process and wear and tear. The Veteran’s retrolisthesis, herniation, and stenosis were caused by the degenerative disc disease and his bilateral lower extremity radiculopathy was caused by impingement of nerves caused by degenerative disc disease. The examiner opined that a mild chronic compression fracture at T12 could have been caused by injury, osteoporosis/weakened bone, or excessive pressure. Considering that there were no complaints for back disabilities in service records and the earliest documented back complaints were in 2004, coupled with the Veteran’s age, the examiner concluded that Veteran’s back disability was less likely than not due to his reported in-service injury of moving patients. The Veteran contends the VA examination was inadequate as the examiner only spent five minutes for the examination and did not take x-rays. He also indicated that she has only five years of experience compared to his chiropractor who has 20 years of experience and gave an entirely different picture of his back disability. However, a review of the examination report indicates that the examiner performed an in-person examination, reviewed the Veteran’s records and did consider the Veteran’s lay statements. Therefore, the Board concludes that the November 2020 VA examination report was adequate. To the extent the Veteran has suggested that he experienced back pain ever since service, and that it was a manifestation of the currently diagnosed back condition, he is not competent to make such a medical determination as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires an understanding of human anatomy, as well as the ability to conduct and interpret complicated diagnostic medical testing such as x-rays and MRIs. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence, which in this case is the November 2020 VA medical opinion. As the most probative evidence is against the claim, service connection for a low back disability is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.